Constitutional Principles

The ACLU, the NYCLU, and the CLEAR project at CUNY Law School filed a lawsuit in June 2013 challenging the New York City Police Department's discriminatory and unjustified surveillance of New York Muslims. We were later joined by the law firm of Morrison & Foerster LLP. The plaintiffs include three religious and community leaders, two mosques, and one charitable organization, all of whom were subject to the NYPD's unconstitutional religious profiling program. In January 2016, we announced a proposed settlement in the case with important reforms that include a bar against NYPD investigations on the basis of race, religion, or ethnicity, and the creation of a civilian representative position to oversee rules that safeguard against discriminatory and unjustified NYPD surveillance. That settlement was a joint one, with both the NYPD and the lawyers in Handschu v. Special Services Division, a long-standing class action that challenged the NYPD’s unlawful surveillance of political groups and activists. In October 2016, the federal district court judge presiding over the Handschu case held that he would approve the settlement if the parties agreed to three alterations, which would further strengthen protections. In March 2017, the courts in both Handschu and Raza approved the revised settlement.

The NYPD's program, dedicated to the total surveillance of Muslims in the greater New York City area, operated under the unconstitutional premise that Muslim beliefs and practices are a basis for law enforcement scrutiny. The NYPD mapped Muslim communities and their religious, educational, and social institutions and businesses in New York City (and beyond). It deployed NYPD officers and informants to infiltrate mosques and other institutions to monitor the conversations of Muslim New Yorkers, including religious leaders, based on their religion without any suspicion of wrongdoing. It conducted other forms of warrantless surveillance of Muslims, including the monitoring of websites, blogs, and other online forums. The results of these unlawful spying activities were entered into NYPD intelligence databases, which amassed information about thousands of law-abiding Americans. A police representative has admitted that the mapping activities did not generate a single lead or resulted in even one terrorism investigation.

The NYPD’s warrantless surveillance of our clients profoundly harmed their religious goals, missions, and practices. It forced religious leaders to censor what they said to their congregants, limit their religious counseling, and record their sermons, for fear that their statements could be taken out of context by police officers or informants. It also diminished attendance at mosques, prompted distrust of newcomers out of concern they are NYPD informants, and prevented the mosques from fulfilling their mission of serving as religious sanctuaries.

Our lawsuit charged that the NYPD, through its discriminatory surveillance program, violated our clients' constitutional right to equal protection, as well as their right to freely exercise their religious beliefs.

The final settlement approved by the court in March 2017 established a number of reforms designed to protect New York Muslims and others from discriminatory and unjustified surveillance. It entailed modification of the Handschu Guidelines, which govern NYPD surveillance of political and religious activity. The reforms include the following:

Prohibiting investigations in which race, religion, or ethnicity is a substantial or motivating factor;

Requiring articulable and factual information before the NYPD can launch a preliminary investigation into political or religious activity;

Requiring the NYPD to account for the potential effect of investigative techniques on constitutionally protected activities such as religious worship and political meetings;

Limiting the NYPD’s use of undercovers and confidential informants to situations in which the information sought cannot reasonably be obtained in a timely and effective way by less intrusive means;

Putting an end to open-ended investigations by imposing presumptive time limits and requiring reviews of ongoing investigations every six months;

Installing a Civilian Representative within the NYPD, with the power and obligation to ensure all safeguards are followed and to serve as a check on investigations directed at political and religious activities;

Empower the representative to report to the court at any time concerning violations of the Handschu Guidelines;

Require the mayor to seek court approval before abolishing the position of civilian representative; and

Removing from the NYPD website the discredited and unscientificRadicalization in the West report, which justified discriminatory surveillance, and affirming that the report is not and will not be relied upon to open or prolong NYPD investigations.